ARIZONA REPUBLIC: Supreme Court refuses to stop Arizona Clean Elections law

June 2, 2010
Alia Beard Rau


The U.S. Supreme Court on Tuesday issued a one-sentence denial to an emergency request to halt the matching-funds portion of Arizona's publicly funded Clean Elections program. Within hours, the attorneys representing matching-funds opponents asked the high court to reconsider.

Justice Anthony Kennedy's order left open the door for the attorneys to refile, as long as they also ask the court to hear the case itself. The attorneys had asked only that the court block the disbursal of funds.

"The court appears to want assurance that the injunction would not last forever and that it would have the chance to decide the merits of the case," Goldwater Institute attorney Clint Bolick said.

The Goldwater Institute and the Institute for Justice are representing several current and former Republican candidates in a lawsuit challenging the constitutionality of the matching-funds portion of the voter-approved program. Clean Elections participants get some public funding up front and can get additional public funds if an opponent running as a traditional candidate spends more money - their own or their donors' - than the lump sum Clean Elections candidates received initially. The plaintiffs say they limited their own campaign spending to avoid triggering those matching funds to Clean Elections opponents, in effect chilling their own freedom of speech.

The plaintiffs asked the Supreme Court to intervene after a May 21 appellate ruling in favor of Clean Elections. The plaintiffs' new request says that they also will ask the high court to hear the full case, said Nick Dranias, another Goldwater attorney.

Dranias said the court could still issue an emergency halt to matching funds before the state starts handing out the money on June 22. And if the court again denies the request, the attorneys can still ask for a rehearing before the 9th U.S. Circuit Court of Appeals, he said.

"Everybody should hold on to their hats," Dranias said. "This battle will be fought out in the trenches over the next three weeks at least. It will be fast-moving, there will be lots of different decisions coming in, and it may be June 22 before we know what's going to happen."

Early voting begins July 29 for the Aug. 24 primary election. As of Tuesday, 132 candidates have signed up as Clean Elections candidates for the primary. The race likely to be the most affected by matching funds is the one for governor.

Finance reports released Tuesday show that Yavapai County businessman Buz Mills, a Republican, had spent $2.3 million as of May 31. That means each of the three Republicans running under Clean Elections, Gov. Jan Brewer, state Treasurer Dean Martin and Tom Gordon, is due to get the maximum $1.4 million in matching funds in addition to their initial $707,447.

GOP gubernatorial candidate John Munger said Tuesday that he was dropping out of the race, primarily because of the Supreme Court ruling. Munger is not running under Clean Elections and therefore not eligible for any funds, putting him at a financial disadvantage. He called matching funds "an insurmountable obstacle" to his campaign.

Martin, who is also one of the plaintiffs opposing matching funds, said that although the Supreme Court ruling does financially benefit his campaign, it is a loss for the state. He said he had to run as a Clean Elections candidate to be competitive, particularly in his race against Mills.

"If we had won, I would have had less money for my campaign, which I was OK with," Martin said. "I like the Constitution more than I do my own personal campaign."

Todd Lang, executive director for the Clean Elections Commission, said in a statement Tuesday that matching funds are vital to a fair campaign.

"Matching funds add viewpoints to the marketplace of ideas," he said. "These funds enable voters to hear both sides of the story and add to a robust debate."

Two weeks ago, a three-judge panel of 9th Circuit unanimously agreed, saying that matching funds impose a "minimal burden" on First Amendment rights.

The panel went on to say that Arizona has a "long history" of political corruption and that matching funds are important to reducing that corruption.

"The more candidates that run with public funding, the smaller the appearance among Arizona elected officials of being susceptible to quid pro quo corruption," the ruling stated